Rex v Mbithuka (Cr. App. 42/1931.) [1931] EACA 27 (1 January 1931)

## APPELLATE CRIMINAL.

## Before SIR J'. W. BARTH, C. J., and THOMAS, J.

REX (Respondent) (Original Prosecutor)

## MUSYA WA MBITHUKA (Appellant) (Original Accused) Cr. App. $42/1931$ .

Official corruption-bribery-interference with public servantssection 88 (2), Penal Code.

$Held$ (7-9-31): - That whatever motive impels payment of money to an Elder, whether owing to him or not, in course of a trial before<br>him, presupposes an intention to influence the Elder.

Appellant absent, unrepresented.

Abbott, Crown Counsel, for Crown.

The appellant was charged in the lower Court with offering a bribe to Nzuma Elders under section 88 (2) of the Penal Code. Evidence in that Court showed that a Council of five elders. heard evidence in a civil case in which the appellant was defendant. It was in evidence that after the elders had retired to consider the case, and before delivering judgment, a friend of the appellant, on his behalf and with his consent, approached one of the elders to whom the appellant owed Sh. 12, tendered a sum of Sh. 5, and said: "Sikiya case yake mazuri." The elder accepted the money and reported the matter to the Council. In his defence the appellant submitted that he had no intention to bribe the elder, and that the payment was merely on account of the debt which he owed to the elder.

The Magistrate found the accused guilty and sentenced him to six months imprisonment with hard labour.

The Judgment of the Court was read by Sir Jacob Barth, C. J., and was in the following terms.

JUDGMENT.—The appellant has been convicted for an offence under section 88 (2) P. C. His defence is that the money paid to the elder was not a bribe but a payment or part payment of a The elder agreed that the appellant owed him money debt. but says it was Sh. 12.

The appellant's case is that he could not expect a fair trial if one of his judges was a person to whom he owed money.

This may be a reasonable point of view from a native standpoint, but in our judgment the fact of sending money to a judge who is sitting in a case in which the sender is a party amounts to bribery, although the intention may be to secure impartiality rather than prejudice in the sender's favour.

In view of the facts we are of opinion that the sentence is too severe and we reduce it to such a period that it expires forthwith.